1936460 (Migration)

[2020] AATA 3374

1936460 (Migration) [2020] AATA 3374 (2 June 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1936460

MEMBER:  Michael Ison

DATE:  2 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student Subclass 500 visaapplicant’s Subclass 500 (Student) visa.

Statement made on 02 June 2020 at 2:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – drug-related offences – Community Corrections Order – consideration of discretion – purpose of stay – relationship with partner – COVID-19 travel restrictions in Italy – degree of hardship – circumstances in which the ground for cancellation of the visa arose – guilty plea – reverse onus of proof – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 198
Migration Regulations 1994 (Cth), r 2.43; Schedule 4, Public Interest Criterion 4013

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under

   s.116 of the Migration Act 1958 (the Act).

Background

1. The applicant is a 28 year old Italian national who arrived in Australia on 4 February 2016 as the holder of a Class TZ (Subclass 417) Working Holiday visa that was valid to 4 February 2017. The applicant departed Australia on 3 February 2017 and returned on 24 March 2018 as the holder of a further Working Holiday visa that was valid to 24 March 2019. On 21 March 2019 the applicant was granted a Bridging A (Subclass 010) visa and on 23 May 2019 was granted a Student (Subclass 500) visa. The applicant currently holds a Bridging E (Subclass 050) visa, with conditions that do not permit the applicant to work or study.

1. On 18 November 2019 a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation of a visa (NOICC). The Tribunal is satisfied the NOICC complied with the requirements of s.119 of the Act.

1. The applicant responded to the NOICC by an email on 2 December 2019, three emails on 3 December 2019 and a further email on 6 December 2019. These emails included a four page written submission from the applicant’s representative and 14 attachments. On 23 December 2019 the applicant’s Student visa was cancelled. At that time the applicant was studying a Certificate III in Carpentry.

1. For clarity, the Tribunal refers in these reasons to the applicant’s visa that was cancelled as his Student visa and to his current visa as a Bridging E visa.

1. The applicant provided the Tribunal with a copy of the delegate’s decision to cancel the applicant’s Student visa.

1. The delegate cancelled the applicant’s Student visa under s.116(1)(g) and r.2.43(1)(oa) on the basis that there was a prescribed ground for the cancellation, being that the applicant had been convicted of a criminal offence in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

Tribunal hearing

1. The applicant appeared before the Tribunal on 2 April 2020 to give evidence and present arguments.

1. The hearing was conducted during the COVID-19 pandemic by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

1. The applicant was represented in relation to the review by his registered migration agent who participated in the hearing by telephone, provided written submissions before and after

the Tribunal hearing and oral submissions during the Tribunal hearing. These submissions were of considerable assistance to the Tribunal in the conduct of this review.

1. At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including explaining that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal further informed the applicant that it would allow the applicant and his representative to address the Tribunal towards the end of the hearing on any matter they each felt was relevant to the applicant’s review.

1. On 27 March 2020 the Tribunal received the following documents on behalf of the applicant:

   ·One page statutory declaration declared by the applicant on 3 December 2019;

   ·Four page undated written submission from the applicant’s representative;

   ·Letter of enrolment in a Certificate III in Carpentry from [education provider] dated 14 October 2019;

   ·Confirmation of Enrolment in a Certificate III in Carpentry from 29 April 2019 to 26 April 2020;

   ·Confirmation of Enrolment in a Diploma of Building and Construction (Management) from 25 May 2020 to 23 May 2021;

   ·Visa Grant Notice for a Working Holiday visa dated 26 February 2018;

   ·Community Correction Order made by the Magistrates’ Court of Victoria on 11 November 2019;

   ·Letter to the applicant from Victoria Legal Aid dated 11 November 2019;

   ·A two page unpaid community work instruction brochure;

   ·A roster of unpaid community work sites and dates;

   ·A two page unpaid community work induction session brochure;

   ·Letter of enrolment in a Certificate III in Carpentry from [education provider] dated 18 October 2019;

   ·A statement of results from [education provider] dated 22 October 2019;

   ·A copy of the NOICC dated 18 November 2019;

   ·A one page character reference from the applicant’s partner, [Ms A] addressed to the Magistrate and dated 1 October 2019;

   ·A two page character reference from the applicant’s older sister, [Ms B] dated 30 November 2019 and including a one page extract of [Ms B]’s passport; and

   ·An extract of an email from the applicant’s lawyer at Victoria Legal Aid dated 3 December 2019.

1. On 14 April 2020, the Tribunal received a copy of an email from Victoria Legal Aid to the applicant’s representative dated 9 April 2020.

1. The Tribunal has considered all the information before it, including the applicant’s oral evidence, the written submissions made on behalf of the applicant and the information on the Tribunal file and the Tribunal’s copy of the Department’s file.

1. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

1. Regulation 2.43(1)(oa) provides:

   (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   …

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

1. In the applicant’s response to the NOICC, his representative wrote:

   2.1.[The applicant] was arrested on 7th April 2019 and charged by Victoria Police with the charges stated in the charge sheet.

   2.2.On 11th November 2019, he attended Melbourne Magistrate Court in this matter and pleaded guilty. The Magistrate placed him on a Community Corrections Order (CCO) for 12 months with conditions outlined in the CCO.

   2.3.The Visa holder is in compliance with CCO conditions.

1. In the Record of Decision dated 23 December 2019, the delegate wrote:

   On 13 November 2019 the Department was advised by Victoria Police that the visa holder had been convicted of the following offences. The visa holder was sentenced to a 12 month Community Correction Order.

Court	Date	Offence	Result
Melbourne Magistrates Court	11/11/2019	1x Traffick Ecstasy 1x Traffick Ketamine 1x Possess Cannabis 1x Possess LSD	Convicted and a Community Correction Order for 12 months; with conditions to perform unpaid community work and undergo assessment and treatment for drug abuse / dependency.
1x Deal Property Suspected of
Being Proceeds of Crime ($2,200)

As the visa holder has been convicted of an offence against a law of Victoria, his Student visa may be cancelled under section 116(1)(g) of the Act as it appears a prescribed ground for cancelling a visa at Regulation 2.43(1)(oa) applies to him.

…

In response to the Notice, the visa holder concedes that he has a criminal conviction, that he was arrested on 7 April 2019, and on 11 November 2019 attended Melbourne Magistrates Court and pleaded guilty to the charges.

1. The applicant provided the Tribunal with a copy of the Community Corrections Order (CCO) made on 11 November 2019 and a copy of a letter from Victoria Legal Aid of the same date confirming the outcome of his case at Melbourne Magistrate’s Court that day.

1. When asked by the Tribunal, after the Tribunal explained the difference between a ground for cancellation and the discretionary considerations relevant to whether the applicant’s visa should be cancelled, the applicant agreed there was a ground for the cancellation of his visa under s.116(1)(g) of the Act and r.2.43(1)(oa).

1. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(oa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instructions formerly known as the Department’s Procedures Advice Manual or PAM3 ‘General visa cancellation powers’.

1. The Tribunal has considered all of the applicant’s circumstances. The headings from the Department’s Procedural Instructions are used for convenience only.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant initially travelled to Australia in March 2018 on a Working Holiday visa but then was granted a Student visa in May 2019 such that the purpose of his stay in Australia is to study. As a Student visa is a temporary visa and holders of that visa are expected to return to their home or another country at the end of their studies in Australia, holding that visa does not usually provide a compelling need to remain in Australia.

1. The delegate found that the applicant also has a partner in Australia, [Ms A], also an international student and that this relationship was part of the reason for the applicant to remain in Australia. [Ms A] provided a statement in support of the applicant dated 1 October 2019, sent to the lawyer who represented the applicant in relation to his criminal law matters. [Ms A] wrote:

   I have have been in a domestic relationship with [the applicant], [Address 1] for over a year.

   Since I met [the applicant], he is always been working, and about 6 months ago he started to study Carpentry and he has been working with a team since the beginning! He is really happy about the opportunity to study and improve himself here in Melbourne, with me and his friends, and his family always supported him in his journey!

   I can say that in all this time we spent together, [the applicant] has been decent, never did nothing to harm the community or anyone, always hardworking, and trustworthy person, and I do not believe that he would do something to jeopardise his future, his peace of mind, as well as his life and new opportunities here.

I see his struggle with money because of the Visa application and the school fees, that are really expensive, and his job does not pay off all the expenses he has, but I never saw him doing nothing against the law the cover them.

If he did so, I can just justify this action, as a once in a life time, because since everything that happened he has been confident but sad, working harder than ever, taking school and the lectures really serious, and always making plans for the future as a decent and hard working person, as he is always been.

Both of us are students and we work really hard to be here, far from our home country, but always doing the right thing, always obeying the law and respecting everybody! (sic)

1. The Tribunal did not receive an up to date statement from [Ms A] and when the Tribunal asked the applicant whether he was still in a relationship with [Ms A] the applicant responded that they are and [Ms A] is still the applicant’s partner, but they have been having some trouble in their relationship. The Tribunal finds that the applicant’s relationship with [Ms A] provides a reason for the applicant to remain in Australia, but on the applicant’s evidence and the evidence before the Tribunal, not a compelling reason.

1. The applicant submitted that the COVID-19 global pandemic means that returning to Italy is potentially dangerous to his health and that it is safer for him to stay in Australia. The applicant told the Tribunal at the time of hearing it was almost impossible to get an airplane ticket to return to Italy and those that were available were very overpriced.

1. The Tribunal accepts that under current COVID-19 travel restrictions in Italy and the European Union it may be difficult for the applicant to return to Italy while those restrictions remain in force.

1. Publically available information indicates that at the time of this decision Italy has banned all international travel except travel for proven work needs, emergency situations or for health reasons. From 3 June 2020 that travel ban will be relaxed to allow travel to and from member States of the European Union, State parties to the Schengen Agreement, the United Kingdom of Great Britain and Northern Ireland, Andorra and Monaco.

1. A search of publically available information also indicates flights from Melbourne to Italy remain available to the public at the time of this decision.

1. The Tribunal finds that the applicant does not have a compelling reason to remain in Australia in the sense envisaged by Australia’s migration law. Normally this would mean this consideration would weigh in support of the cancellation of the applicant’s Student visa. However, in the current circumstances of the COVID-19 global pandemic the Tribunal finds that it may be difficult for the applicant to depart Australia to return to Italy unless and until Italy’s current travel restrictions are further eased and the Tribunal cannot predict when that might occur. Therefore, the Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Student visa.

The extent of compliance with visa conditions

1. The applicant told the Tribunal that he has not worked more than the 40 hours per fortnight allowed under the conditions of his Student visa and has complied with the conditions of his current Bridging E visa, including the conditions that prevent him from working or studying.

1. There is no information before the Tribunal that the applicant has breached or been found to have breached a condition of his Student visa or his current Bridging E visa.

1. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Student visa and the Tribunal gives it some weight.

The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The Tribunal read to the applicant during the hearing the following findings of the delegate and asked the applicant for his response to those findings:

   In response to the Notice, the visa holder stated cancellation of his visa would result in ‘permanent damage to his future’. That the ‘damage is not limited to the financial side’ as he is ‘already feeling psychological distress...and on the cusp of psychological depression’. Adding that it would be ‘extremely difficult for him to return home without completing his qualifications, he has sacrificed a lot and paid high fees in order to obtain a world-class education in Australia’.

   The visa holder has been residing in Australia since January 2016, and I consider that the visa holder may have established some ties to Australia in this time. I further note his Student visa is in effect until 23 July 2021 and that this is a temporary visa which does not include an expectation of prolonged stay in Australia greater than the visa’s specified stay period. While I consider a cancellation decision may cause the visa holder some hardship and perhaps affect future study opportunities, as he would no longer be able to study or work in Australia, it would be open to the visa holder to pursue and explore his studies and career opportunities outside of Australia.

   I note that the visa holder is in a de facto relationship in Australia and I acknowledge that separation from his partner may cause a degree of emotional and psychological hardship to the visa holder and his partner. (sic) (emphasis in original)

1. The applicant told the Tribunal that he would like to complete his studies in Australia because the qualifications he is trying to obtain, being a Certificate III in Carpentry and Diploma of Building and Construction (Management), are important to his career as a carpenter and builder when he returns to Italy and without those qualifications it will be difficult for the applicant to find work and start over in Italy.

1. The applicant provided documentation confirming his enrolments, confirmation of fees paid to 18 October 2019 and his academic results as at 22 October 2019 showing he had passed 15 units of his Certificate III course to that date. The Tribunal accepts this evidence.

1. The applicant told the Tribunal if his visa was not cancelled and he was able to resume study and work he would enrol in a job ready program after obtaining his qualifications, obtain a skills assessment and seek a Skilled visa as a pathway to obtaining permanent residency in Australia. The applicant’s representative submitted that he was not sure on his instructions that the applicant wanted permanent residency but the applicant told the representative he would like to get qualified, apply his trade and give something back to Australia.

1. The applicant declared a statutory declaration on 12 March 2020 declaring that he is regretful about his actions, enjoys and wishes to complete his studies, wants to be a carpenter in Australia and Italy and is really scared of losing this opportunity, wishes to contribute to the community by completing his CCO and does not have similar opportunities to study in Italy. The Tribunal accepts this evidence.

1. The applicant told the Tribunal that if his Student visa is cancelled and he has to return to Italy it will mean the end of his relationship with [Ms A], who is from [Country 1]. The applicant told the Tribunal he and [Ms A] have been in a relationship for 18 months and she is also in Australia as the holder of a Student visa and has two years of study in Australia to complete. The applicant told the Tribunal that since the delegate cancelled his Student visa [Ms A] and his family have been supporting him financially.

1. The applicant also told the Tribunal the cancellation of his visa would cause his family great upset as they have supported him, including financially, since his first arrival in Australia in 2016 and if he could not obtain the qualifications he seeks in Australia it would mean all of the applicant’s efforts, the study fees, his study to date and his family’s support to date would

be lost. The applicant gave evidence his father passed away when he was young and his mother lives on her own in Italy and he has an older sister who lives in Switzerland.

1. The Tribunal accepts the applicant’s evidence about the hardship the cancellation of his visa would cause.

1. The applicant’s sister provided a character reference for the applicant in which she stated that the applicant is a hardworking, honest and decent person who is remorseful for his criminal offending, fearful for his future and deserving of another chance to stay in Australia to finish his studies. The Tribunal accepts this statement as evidence of the ongoing support provided to the applicant, and the high regard the applicant is held in, by his sister.

1. The applicant’s representative stated in his closing submission that the applicant:

   ·is embarrassed and remorseful for the hardship he has caused his family, particularly his mother who raised him and his sister from a young age due to the death of her husband, the applicant’s father;

   ·is suffering psychological distress;

   ·has caused his mother, who has supported him financially, hardship;

   ·has maintained his relationship with [Ms A], which has been impacted by the applicant’s situation but they continue to make plans together;

   ·has suffered and caused financial hardship through the payment of fees for his Certificate III course that he has not been able to complete and due to his reliance since the cancellation of his visa in November 2019 to his mother and [Ms A] who have been supporting him financially;

   ·will not have the opportunity to resume his studies in Italy as the applicant is not eligible to enrol in those course in Italy as they are only available as a component of high school or post high school study;

   ·[Ms A] and the applicant’s mother have all experienced psychological hardship due to the applicant’s circumstances in Australia including his criminal law matters and the cancellation of his Student visa.

1. The Tribunal accepts these submissions, which are consistent with the evidence of the applicant and other information before the Tribunal, save that the Tribunal does not accept the claims of psychological injury or illness as there is no medical evidence before the Tribunal to support those claims, including the claim the applicant is “on the cusp of psychological depression”.

1. The Tribunal finds that the applicant would suffer financial and emotional hardship due to not being able to complete his studies in Australia and due to having to potentially end his relationship with [Ms A]. The Tribunal also accepts and finds that the applicant’s family, being his mother and sister, would suffer emotional hardship from the disappointment of the applicant not achieving an Australian qualification and also financial hardship in the sense of the financial support they have provided to the applicant not achieving the outcome they provided that financial support for.

1. The Tribunal also finds that the applicant’s partner, [Ms A], would suffer some emotional hardship if the cancellation of the applicant’s visa resulted in their romantic relationship coming to an end. It is difficult for the Tribunal to assess the extent of this hardship for [Ms A] given the applicant’s evidence of there being recent trouble in their relationship and the lack of an updated statement being provided by [Ms A].

1. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Student visa and the Tribunal gives it considerable weight.

The circumstances in which the ground of cancellation arose.

1. The Tribunal read the following to the applicant during the Tribunal hearing:

   I need to inform you that the Tribunal has received information other than from you that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate to cancel your visa. The Tribunal has not formed any view about this information yet.

   That information is contained in a document in the Department’s file, a copy of which the Tribunal has, that has been provided to the Department by Victoria Police after your criminal trial. The document is two pages and titled ‘Preliminary Brief – Statement Made by Informant’. The informant is the police officer who filed the criminal charges against you.

   The relevant information in the document is that it sets out the circumstances of your offending. That is, that on 7 April 2019 at 11pm in Prahran Victoria Police officers searched your motor vehicle and found ziplock bags containing 50 MDMA or Ecstasy capsules, 77 additional Ecstasy capsules, 17 small deal bags each containing Ketamine and a glass jar containing cannabis. You admitted these illicit drugs were yours. You subsequently told police there were more illicit drugs at your home leading to the police executing a search warrant there and finding more Ecstasy capsules, a ziplock bag with 11.5 grams of Ecstasy, a container containing $2200 in $100 notes, 2 small digital scales, unused empty capsules, 2 deal bags of Ketamine, a zip lock bag containing cannabis and a zip lock bag containing LSD film.

   In your interview with police the statement records when you were asked what you were going to do with the illicit drugs you answered “nothing”. When asked why you had them you answered “I don’t know”.

   When asked where you got them from you answered “I just found a month ago, I just have it for my possession, I just use, I never sold.”

   The relevance of the information the Tribunal has disclosed to you is that the Tribunal could form the view that even though you told the police about the additional drugs at your home you were not co-operative with the police during interview and you were not truthful during that interview which could influence the Tribunal’s view about your credibility, honesty and remorse for your offending.

   Do you understand the relevance of this information to your review?

   The consequence for your review if the Tribunal relies on the information in the document titled ‘Preliminary Brief – Statement Made by Informant’ and finds you were not honest during that interview and did not co-operate with Police fully is that you are not a generally honest person or credible witness and you are not truly sorry for your offending. This could lead the Tribunal to find in relation to the discretionary considerations about the circumstances which led to the cancellation of your Student visa, that it weighs in support, rather than against, the cancellation of your Student visa to an extent that consideration outweighs the considerations that may weigh against the cancellation of your Student visa. If the Tribunal makes such findings and attaches such weight to the consideration of the circumstances that led to the cancellation of your visa, then the Tribunal would affirm the decision of the delegate that is under review.

   Do you understand the consequences for your review if the Tribunal relies on the information it has disclosed to you?

   Shortly I am going to ask you to comment on or respond to the information the Tribunal has disclosed to you. Before I do that however, I am going to offer you additional time to consider the information before you comment on or respond to it. Would you like additional time to consider the information the Tribunal has disclosed to you?

1. The applicant confirmed when asked that he understood the relevance of the information disclosed to his review and also understood the consequences for his review of the Tribunal relied on the information it had just disclosed to him. The applicant requested additional time to consider the information the Tribunal had disclosed to him, including so he could discuss that information with his representative. The Tribunal agreed to this request and adjourned the hearing for a short time.

1. Upon the resumption of the Tribunal hearing the applicant and his representative told the Tribunal that the applicant had had sufficient time to consider the information disclosed to the applicant by the Tribunal.

1. The applicant told the Tribunal that the circumstances of his criminal offending was that he found a black backpack next to a tree in a park in St Kilda. In the backpack were a notepad with no writing on it, a pack of tissues, two bags of capsules and a bag of what the applicant recognised as cannabis. The applicant said he kept the drugs and threw away the backpack and the rest of its contents. The applicant told the Tribunal he did not know what the capsules were.

1. The applicant told the Tribunal he came out Coles in Chapel Street, Prahran and when he was getting into his car he was stopped by police who searched his car and found the drugs in a bag. The applicant said he had forgotten the drugs were in the bag and he does not use the drugs the police found, he only smokes cannabis occasionally. The applicant said as part of his CCO he attended a police station a couple of months ago, completed a drug test and the results were negative for drug use and that he does not and has not dealt drugs at all. The applicant told the Tribunal he is an honest person and always tells the truth, telling the police he smoked cannabis occasionally and that there were more drugs back at his unit, which the police would not have become aware of without the applicant disclosing that.

1. The Tribunal asked the applicant about the AUD2,200 found in AUD100 notes stored in a container in his unit. The applicant told the Tribunal it was his and [Ms A]’s money, their savings including from [money that Ms A] received as a [Occupation 1]. The Tribunal queried why this money was in AUD100 notes when found by police. The applicant told the Tribunal they had a coin box and when it reached AUD100 they would take it to a cashier at the bank and exchange it for an AUD100 note.

1. The Tribunal asked the applicant why he had scales, empty bags described as ‘deal bags’ and empty capsules at home if the drugs in his possession were drugs that he found. The applicant told the Tribunal that of the empty capsules that everything was in caps and he didn’t know that and that the scale was because the applicant used to smoke ‘weed’ so he used to have a scale for his weed. The Tribunal asked the applicant how he would acquire the marijuana that he used. The applicant told the Tribunal he purchased it. The Tribunal asked the applicant how he would purchase it. The applicant told the Tribunal he would buy it on the street. The Tribunal asked the applicant how often he used marijuana. The applicant responded it depends on when he finds it. He said if he had marijuana he could use it daily, but if he doesn’t have any he doesn’t smoke it but if he has some he smokes it. The applicant told the Tribunal he would consume marijuana by smoking self-rolled cigarettes know as ‘joints’. The applicant told the Tribunal he would purchase marijuana once a month if he finds it, but he could go two or three months without using marijuana.

1. The applicant’s representative made a submission to clarify the applicant’s evidence that he wasn’t addicted or reliant on marijuana and didn’t have a particular place where he used to buy it from. Instead, living in an inner suburban suburb he would purchase it if he came across it which meant if he was walking down the street and could smell marijuana he would approach and buy some and that would happen spasmodically, not with a regular supplier. This meant when he had marijuana the applicant could smoke it two or three nights in a row but then could go weeks without smoking at all.

1. The applicant confirmed the submission of his representative was correct.

1. The Tribunal asked the applicant why he would have scales when he purchased and used marijuana spasmodically. The applicant replied for his weed, to make sure when he was buying it he got the amount he paid for.

1. The Tribunal indicated to the applicant that it could form the view that scales would only be needed to divide drugs up into portions for sale and that his possession of scales indicates he was selling drugs and that he was not being honest with the Tribunal and was not honest

with the police. The applicant responded that he understood the Tribunal’s potential view but the Tribunal asked him to tell the truth and that is what he has always been saying, that he used the scale for his marijuana use and that a normal marijuana user always has a scale just to make sure when you buy or even if you have to split for yourself for your daily or weekly use so you can have your bag for the week so you need a scale to split it, having a scale does not mean you are splitting it to make bags for sale.

1. The applicant told the Tribunal that he had used ecstasy a couple of times in his life, including a couple of times at parties in Australia. The applicant said he had not used LSD.

1. The Tribunal asked the applicant if there was anything else he wished to tell the Tribunal in relation to this consideration. The applicant said he is remorseful for his actions and has been honest throughout, although he understands it may be hard to believe him. However, he was honest with the police about his marijuana use but also understands it may be hard to believe why he has scales but they are just for his ‘weed’ which is for personal use and he does not sell drugs. He told the Tribunal his honesty is reflected by having pleaded guilty to the criminal charges.

1. The applicant said if he was selling drugs then he would have just left Australia after the criminal proceedings. He told the Tribunal he believes he made a big mistake but that mistake should not wipe out all the good things he has done and the progress he has made in Australia.

1. The Tribunal was not convinced by the applicant’s evidence in relation to the circumstances that led to the cancellation of his visa. The Tribunal accepts that while it is possible the applicant found the drugs it is not a plausible explanation in the applicant’s circumstances of having some of those drugs in his car and some at his home and also having scales, empty capsules and deal bags at home and a large quantity of cash in AUD100 notes.

1. The Tribunal also found the applicant’s explanation for the AUD2,200 in AUD100 notes found in his home to be implausible given that the applicant and [Ms A] were both studying on Student visas at the time, were therefore significantly restricted in their work hours and had been living together for approximately only six months at the time the cash was found in April 2019. [Ms A]’s 1 October 2019 written statement to the Magistrate’s Court stated she had been in a relationship with the applicant at that time for over a year. In his evidence to the Tribunal the applicant confirmed he has been in a relationship, at the time of hearing, for approximately 18 months. This places the commencement of the applicant’s relationship with [Ms A] at approximately October 2019. It seems improbable to the Tribunal that international students in the applicant’s and [Ms A]’s circumstances are likely to save AUD2,200 in coins in approximately six months that they would then have cashed for AUD100 notes.

1. While the Tribunal was not convinced by the applicant’s explanation for how he purchased the marijuana he used, the Tribunal is prepared to give the applicant the benefit of the doubt in this regard. However, the Tribunal found the applicant’s explanation for his possession and use of scales to also be implausible. If the applicant purchased marijuana spasmodically on the street from people he did not know and had not met before or presumably since given his evidence he did not have a regular supplier, then there would be no opportunity for the applicant to go back to those casual suppliers he met on the street if he found the weight of the marijuana he purchased was less than the weight he was told at the time of purchase.

1. The Tribunal also does not accept that the applicant needs scales and ‘deal bags’ for his own personal use, in particular in circumstances where the applicant told the Tribunal he would use the marijuana as he had it and was not a dependant or regular smoker.

1. The Tribunal asked the applicant about his guilty plea to the five criminal charges. The applicant said he was advised that once he was found with more than three grams of drugs under the criminal law in Victoria he was guilty of ‘trafficking’ and as he was caught with more than three grams he should not contest those charges because if he contested those charges he would not get a sentencing discount for pleading guilty and if he had pleaded not guilty he would have likely been found guilty and then exposed to a harsher penalty than the CCO he received. The applicant also told the Tribunal that the AUD2,200 the police found was confiscated as the proceeds of crime, but was really his and [Ms A]’s savings.

1. After the Tribunal hearing the applicant’s representative provided the Tribunal with a copy of an email from the Victoria Legal Aid lawyer who represented the applicant in relation to his criminal law matters, in which the lawyer explained the circumstances of the applicant’s plea and sentence as follows:

   All of the below is from my memory. My hardcopy file has been sent to storage, and it takes some time to be released after we request it. The circumstances of the conviction are as follows.

   I advised [the applicant] to plead on the following bases;

   He was above the Prima Facie trafficking amount. In Victoria, as soon as a person possesses over 3.0 grams of MDMA, they are considered to be trafficking. There is an onus on the defendant to prove they were not trafficking.

   Contesting charges is risky; it can potentially increase the sentence a person faces. If a defendant's version of events is not accepted they lose the plea discount under s6AAA of the Sentencing Act. Trafficking is considered to be a serious matter. Jail is usually the starting point for people found guilty of trafficking.

   The plea needs to be understood in context. He did not plead to actually having sold drugs to anyone or ever doing anything besides possessing the drugs. The plea was on the basis that he was above the traffickable quantity, and without being able to refute that, he's guilty.

   A person pleading to a prima facie trafficking amount isn't guilty of actually selling the drugs, or of having them for any period of time. He's guilty of having in excess of 3 grams of the substance on that day when the police picked him up, and being unable to prove that he had them for some purpose unrelated to sale.

   On the day I made submissions as follows;

   No evidence of actual trafficking. The plea was on the basis of being above 3.0 grams.

   [The applicant] is young. Of good character. Excellent prospects of rehabilitation. No priors. Very little risk of reoffending. I submitted that he was remorseful, and was terrified that his stupidity would land him in jail, and/or have him deported. All of this was accepted by Magistrate Martin, who gave him the chance on the CCO.

   It's worth noting that the Court gave [the applicant] a very low level sentence. He was definitely looking at being sent to prison, even on the plea. The Magistrate effectively gave him a chance to prove himself and to rehabilitate himself through the CCO. That obviously suggests that he didn't consider him to be much risk to the community, or much risk of reoffending. The sentence reflects his excellent prospects of rehabilitation. (sic) (emphasis in original)

1. The Tribunal accepts this explanation that the applicant’s guilty plea was not a direct admission of selling drugs to anyone and explains the circumstances of the applicant’s plea in terms consistent with the applicant’s evidence at hearing. The Tribunal finds the evidence before it is that the applicant pleaded guilty to charges that placed a reverse onus of proof on him and he did so to ensure he received a sentencing discount under the Sentencing Act. According to the explanation of the Victoria Legal Aid lawyer this was a successful approach for the applicant as he seemingly avoided a sentence that was otherwise likely to have included a term of imprisonment.

1. The explanation of the Victoria Legal Aid lawyer does not change the Tribunal’s view of the applicant’s evidence in relation to this consideration at the Tribunal hearing. It is not the Tribunal’s role in this review to conduct its own quasi-criminal trial or to seek to punish the applicant for matters for which he has already been sentenced. However, it is the Tribunal’s

role to understand the circumstances of what led to the applicant’s visa being cancelled and where those circumstances include criminal offending what the circumstances of that offending were.

1. What the Tribunal finds in this review is that key aspects of the applicant’s evidence before the Tribunal of the circumstances that led to the cancellation of his visa are not plausible when considered in the context of all of the evidence before the Tribunal. These key aspects include how the applicant came to be in possession of the drugs, how the applicant came to be in possession of 22 AUD100 notes and why the applicant would have scales and ‘deal bags’ in the context of his pattern of use of marijuana and how he purchased that marijuana.

1. The Tribunal finds that this consideration weighs in favour of the cancellation of the applicant’s Student visa and the Tribunal gives it great weight.

The past and present behaviour of the visa holder towards the department

1. The information before the Tribunal is that the applicant has co-operated with the Department throughout the visa cancellation process and has kept the Department informed of matters such as changes of address. There is no evidence before the Tribunal of the applicant having adverse dealings with the Department.

1. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Student visa and the Tribunal gives it some weight.

Whether there would be consequential cancellations under s.140

1. The applicant gave evidence to the Tribunal, which the Tribunal accepts, that no-one is dependent upon his Student visa for their immigration status in Australia.

1. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Student visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. The Tribunal explained to the applicant that if his Student visa was cancelled he would become an unlawful non-citizen and if he was not granted another visa and chose not to depart Australia voluntarily, he could be removed from Australia under s.198 of the Act which would enliven both s.48 of the Act and Public Interest Criterion 4013 (PIC 4013). The Tribunal explained s.48 of the Act would prevent the applicant from applying for some temporary visas while he remained in Australia and PIC 4013 would operate to prevent the applicant from applying for certain visas to return to Australia for three years unless there were specific compassionate or compelling circumstances.

1. The Tribunal asked the applicant and his representative whether they wished to make any submissions in relation to this consideration. Both declined to do so.

1. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Student visa and the Tribunal gives it some weight.

Whether any international obligations, including non-refoulement and best interests of children as a primary consideration, would be breached as a result of the cancellation

1. The applicant does not claim that Australia owes him statutory or other protection obligations or that Australia could be found to be in breach of its non-refoulement obligations by returning him to Italy.

1. The applicant also told the Tribunal that he does not have any children.

1. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Student visa.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The applicant’s Student visa is a temporary visa.

1. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Student visa.

Any other relevant matters

1. The Tribunal discussed with the applicant his compliance with the CCO. The applicant told the Tribunal that he had completed roughly 30 to 40 hours of his required 280 hours of community service before that aspect of his CCO was suspended due to the impact of the COVID-19 global pandemic. The applicant provided several documents in support of this evidence which the Tribunal accepts.

1. The applicant’s representative stated in his closing submission that the applicant:

   ·does not have any prior criminal offending;

   ·is complying with his CCO;

   ·has no record of prior breaches of visa conditions;

   ·remains subject to the CCO which he would not be able to complete if his visa was cancelled and it is important to the applicant to complete the CCO;

   ·has been truthful and co-operative with the Department; and

   ·understands the circumstances that led to his visa being cancelled is a sticking point but it should be accepted he was truthful and co-operative with police including by disclosing there were more drugs at his unit and allowing them to search there.

1. The closing submissions of the applicant’s representative also addressed the hardship that the cancellation of the applicant’s visa would cause, as reproduced in paragraph 46 of these reasons.

1. The Tribunal has taken these submissions into consideration in these reasons.

1. The applicant told the Tribunal in his closing statement that he is stressed by his situation with the cancellation of his visa and is tired of not being able to either study or work which makes him feel like a burden on his girlfriend and family and also feel like a prisoner. The Tribunal has taken these statements into consideration in these reasons.

Conclusion

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

1. The discretionary consideration that weighs in support of the cancellation of the applicant’s Student visa is the circumstances in which the ground for cancellation of the visa arose.

1. The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:

   ·The applicant’s previous compliance with the conditions of his Student visa and current compliance with the conditions attached to his Bridging E visa;

   ·The hardship that cancellation may cause the applicant, his partner and his family;

   ·The past and present behaviour of the applicant towards the Department; and

   ·The mandatory legal consequences that would flow for the applicant from the cancellation of his Student visa.

1. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Student visa are:

   ·The applicant does not have a compelling need to remain in Australia;

   ·The fact that there would be no consequential cancellations under s.140 of the Act if the applicant’s Student visa is cancelled;

   ·Cancellation of the applicant’s Student visa would not cause Australia to breach any of its international obligations; and

   ·The applicant’s Student visa is a temporary rather than permanent visa.

1. In the applicant’s circumstances, after carefully weighing each of the discretionary considerations, the Tribunal has come to the view that the consideration that weighs in support of the cancellation of the applicant’s Student visa outweighs those considerations that weigh against the cancellation of the applicant’s Student visa.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Student Subclass 500 visa.

Michael Ison
Senior Member